Appropriateness of the assertion that additional charges and increased additional charges incurred after the declaration of bankruptcy are subordinate bankruptcy claims;

Even if a claim for additional dues and increased additional dues under the National Tax Collection Act is caused by a default after the declaration of bankruptcy, it cannot be viewed as a subordinate bankruptcy claim as a "amount of damages and penalty due to a default after the declaration of bankruptcy" under Article 37 subparagraph 2 of the former Bankruptcy Act.

Article 38 subparagraph 2 of the former Bankruptcy Act

Article 37 subparagraph 2 of the former Bankruptcy Act

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

It is confirmed that the defendant's claims for additional dues and increased additional dues incurred after May 23, 2003 are subordinate bankruptcy claims with respect to each tax claim stated in the "tax disposition amount" column in the attached list of details of national taxes in arrears (hereinafter referred to as the "attached list") that the defendant has against the plaintiff.

1. Basic facts

The following facts may be acknowledged, either in dispute between the parties or in full view of the respective entries in Gap evidence 1 to 3 (including paper numbers) and the whole purport of the pleadings.

A. On May 23, 2005, the bankrupt company of ○○ Comprehensive Construction Co., Ltd. (hereinafter the bankrupt company) was declared bankrupt by this court under 2005Hau25 (2). The plaintiff was appointed as bankruptcy trustee of the bankrupt company by this court on the same day.

B. As of February 28, 2006, the bankrupt company is in arrears with each principal tax stated in the separate sheet "tax disposition amount" as of February 28, 2006, and as a result, bears each additional dues (5% of this tax) and increased additional dues (1.2% of this tax per month).

다. 한편, 원고는 이 사건 소 제기 후 이 법원에 구 파산법(2005.3.31. 법률 제7428호로 폐지되기 전의 것, 이하 같다) 제38조 제2호에 대한 위헌법률심판제청신청을 하였고, 이 법원은 원고의 위 신청을 받아들여 2006.10.9. 헌법재판소에 "구 파산법 제38조 제2호 본문의 '국세징수법에 의하여 징수할 수 있는 청구권' 중에서 '파산선고 전의 원읜에 의하여 생긴 채권에 기하여 파산선고 후에 발생한 가산금, 중가산금 청구권 부분'의 위헌 여부에 관한 심판"을 제청하였다.

D. In accordance with the constitutional opinion of four constitutional judges on May 29, 2008, the Constitutional Court rendered a decision that "the part concerning the right to demand additional dues and increased additional dues incurred after the declaration of bankruptcy based on national taxes and local taxes arising from the causes arising before the declaration of bankruptcy shall not violate the Constitution" (Article 38 subparagraph 2 of the former Bankruptcy Act).

2. Determination

A. The plaintiff's assertion

(1) Article 38 subparag. 2 of the former Bankruptcy Act provides that "a claim that can be collected according to the example of the National Tax Collection Act or the collection of national taxes" as estate claims, while Article 37 subparag. 2 of the former Bankruptcy Act provides that "the amount of damages and penalties due to the failure to perform the obligation after a declaration of bankruptcy" as subordinate bankruptcy claims. The additional charges and aggravated additional charges arising from the failure to perform the principal tax claims are deemed as having the nature of the amount of damages and penalties due to the failure to perform the obligation. Therefore, the additional charges and increased additional charges arising after the declaration of bankruptcy in the above tax claims against the

(2) However, the Defendant asserts that the above additional charges and increased additional charges are estate claims pursuant to Article 38 subparag. 2 of the former Bankruptcy Act on the grounds that they are claims that can be collected under the National Tax Collection Act, and thus, the Defendant seeks confirmation as stated in the purport of the claim.

B. Determination

(1) The claims for additional dues under Article 21 of the National Tax Collection Act and increased additional dues under Article 22 of the same Act constitute "claims that can be collected pursuant to the National Tax Collection Act" under Article 38 (2) of the former Bankruptcy Act. It is evident in accordance with the language and text of each of the above Acts.

(2) The additional dues and aggravated additional dues under Articles 21 and 22 of the National Tax Collection Act are naturally created pursuant to the provisions of law without any special procedure due to the lapse of the time limit for payment of taxes, and the amount thereof is also fixed. If a national tax is not paid by the time limit for payment, it refers to the amount to be collected in addition to the amount to be collected by adding the notified tax amount under the National Tax Collection Act and the amount to be collected again (in particular, the increased additional dues) after the lapse of the time limit for payment. This is a kind of incidental tax having the nature of damages for delay due to the delay of all or part of the liability for payment, which is corresponding to the damages due to the delay of the obligation to pay taxes under the private law, and it also has the character of administrative punishment, i.e., monetary sanctions imposing high interest rates on national taxes. The additional dues and increased additional dues are also administrative punishments. Article 38 subparag. 2 of the former Bankruptcy Act provides that the additional dues and increased additional dues after bankruptcy claims are not imposed by Article 37 of the former Bankruptcy Act.

(3) In addition, as the Constitutional Court stated in the above 2006Hun-Ga6, 11, 17 (merged), Article 38 subparagraph 2 of the former Bankruptcy Act is to enforce the duty to pay taxes, which is a basic duty under the Constitution, and to enhance the efficiency of tax collection, and it is a constitutional provision that satisfies all the principles of legitimacy of legislative purpose, appropriateness of means, minimum infringement principle, and balance of legal interests. Thus, the above legal provision cannot be said to violate the excessive prohibition principle and thus infringe on the property right of other bankruptcy creditors.

(4) Therefore, the Plaintiff’s assertion with a different view is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is without merit, and it is decided as per Disposition by the court below.